Evidence Shows Apology Laws Are Largely Ineffective
State laws protecting clinicians who apologize after an adverse event appear to have little positive effect. They do not reduce malpractice rates.
- The laws are intended to encourage communication with patients without an apology used as evidence of guilt in court.
- Apologizing might alert patients to the possibility of malpractice and lead to lawsuits.
- Most states have some type of apology law.
What was once a nagging suspicion is becoming established fact. There is growing evidence demonstrating the “apology laws” enacted by most states to protect clinicians after adverse events have little positive effect.
These apologies might even encourage patients to sue, and they can work against a defendant during trial.
Thirty-nine states and the District of Columbia passed apology laws intended to allow physicians and other caregivers to express their remorse over an adverse event or poor outcome without that apology used as evidence of guilt in malpractice litigation. The laws were enacted as the medical community moved away from a previous stance of discouraging apologies to encouraging a more compassionate discourse with patients and family members.
Despite the good intentions of state legislators, the laws were met with some skepticism from the start by the legal community. After years of experience with the laws, many are saying apology laws do not work.
Researchers from the Case Western Reserve University Department of Psychiatry in Cleveland and the Department of Psychiatry at Saint Louis (MO) University School of Medicine concluded, “These laws have not yet had their intended effect of reduced malpractice rates, likely because most apology laws protect expressions of regret but do not protect error disclosure. Apology laws therefore do not facilitate the type of communication that would improve physician transparency and overall patient satisfaction.”1
The two types of apology laws are full and partial. The report explains full apology laws protect statements that are “consistent with the definition of an apology, i.e., an expression of regret and a disclosure of error. States with full apology laws explicitly protect statements of fault.” For example, Arizona’s apology law protects “any statement, affirmation, gesture, or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” from being admitted as evidence.1
Most state apology laws do not go that far. Partial apology laws protect “expressions of regret only, without any protection given to error disclosure,” the researchers explained. Most apology laws only protect sympathetic statements and offer no protection to explicit expressions of fault.
May Encourage Lawsuits
An unintended effect of apology laws is they might encourage patients to sue after an adverse event, says Benjamin J. McMichael, JD, associate professor of law at the University of Alabama School of Law in Tuscaloosa. In a 2019 paper, McMichael explained the underlying assumption of these laws is that an apology will make patients less likely to pursue malpractice claims and more likely to settle claims that are filed.
“However, once a patient has been made aware that the physician has committed a medical error, the patient’s incentive to pursue a claim may increase even though the apology itself cannot be introduced as evidence,” McMichael and colleagues noted.2
Part of the problem is apology laws might encourage clinicians to apologize to a patient without knowing the proper way to do so, McMichael says. Risk managers often train clinicians on how to properly apologize without implying anyone did anything wrong, but those without such training might make statements to the patient causing concern about why the outcome was not as desired.
Apology disclosure programs within hospitals, in which clinicians are coached on how to properly communicate their remorse and regret, have been shown to be effective, McMichael explains. State apology laws seem to make it easier to implement such programs within healthcare organizations because they assure risk managers and other hospital leaders that an apology cannot be de facto evidence of guilt in a malpractice case.
“To the extent that they encourage hospitals to set up these programs, apology laws are useful in that way,” McMichael says. “Otherwise, I would say they are useless.”
Risk managers should encourage physicians to apologize only if they have been properly trained, McMichael says. If they have not been coached on apologies through a program, the risk manager should advise the physician not to communicate states of regret or remorse following an adverse outcome.
“Your advice to the physician after a bad outcome should be entirely dependent on the training that physician has received and the resources available to him or her through an apology disclosure program,” McMichael says. “It should have nothing to do with whether an apology law has been passed in your state.”
Even with training and the most carefully worded apology, communication still can prompt a malpractice lawsuit.
“All you’re really doing is signaling to the patient that ‘you’re injured because I screwed up,’” McMichael explains. “The patient can be injured through just being unlucky, but once you give that apology, the patient can conclude that the doctor thinks he screwed up. Even though the apology itself can’t be used in court, the patient talks to an attorney and they find information to allege that the doctor was at fault, completely separate from the apology itself.”
Apologies Can Be Used Against Physicians
In some cases, plaintiffs’ attorneys have used apology laws against clinicians during malpractice trials, says Roger Harris, JD, partner with Swift Currie in Atlanta. Georgia’s expansive apology law protects most statements conveyed as part of an apology to the patient or family, but Harris has seen attorneys use it to prevent clinicians from expressing regret or remorse when testifying as part of a malpractice trial.
The plaintiff’s attorney can successfully argue the apology law means any type of apology or expression of compassion is inadmissible and not permitted during testimony. That was not the intent of the legislature when it passed the apology law, but because of plaintiff’s attorneys using it against physicians, Harris calls the Georgia apology law “the anti-human being statute.”
“They assert that the stature prevents what any reasonable human being would want to do at the point they take the stand in the trial — which is very often the first time they’re encountering these family members again — and that is to take the stand and say, ‘I’m sorry this happened,’ or ‘I’m sorry this was the outcome, but I don’t believe I deviated from the standard of care,’” Harris explains. “As opposed to being a shield, it became a sword to prevent the jury from being able to see and appreciate that these healthcare providers were, in fact, real human beings with real human feelings and real human emotions.”
Clinicians struggle to testify without stating any concern for the patient and family members or saying they regret how the case turned out, Harris says. The jury might view the doctor as having no feelings or emotions about the case, which is usually far from the truth.
The law has only negatively affected malpractice cases in Georgia, with none of the intended effect of encouraging honest communication with patients and families, in Harris’ estimation.
“In those moments after a poor outcome, people are going to say what they need to say to the patient and family members in terms of being sorry and regretful about the outcome,” Harris says. “Doctors and nurses and other providers are not thinking about the statute when they are dealing with a distressed family. This statute is hardly even talked about anymore, except when plaintiffs’ lawyers file motions to preclude statements at the time of trial.”
Several states, including Arkansas, have not passed apology laws, notes Jason B. Hendren, JD, partner with Hall Booth Smith in Rogers, AR. In those states, an apology still puts a clinician at risk of the statement being used as evidence of wrongdoing.
Hendren defended a physician in a case in which the main liability argument was that his client used the phrase “this is the worst day of my life” when informing a family of an unexpected, but non-negligent, surgical complication.
“He was trying to be empathetic, but it backfired. Although the jury returned a unanimous defense verdict, it was extremely frustrating for the provider to know that his own words likely brought about the lawsuit and were used against him, over and over, during the trial,” he says. “The experience made him wary of his communications with patients and their families. Moreover, and most regrettably, he lost much of the enjoyment of practicing medicine.”
Risk managers should know the laws in their respective jurisdictions and encourage a collaborative approach with providers to determine what language is used in communicating with patients and their families about adverse events or outcomes.
“I have no doubt that my client would have benefited from being advised beforehand that a comment like ‘this is the worst day of my life,’ however well-meaning, would not be optimal in explaining what he knew to be an unexpected, but non-negligent, surgical complication,” Hendren says.
Partial apology laws, the most common type, require the clinician to understand what is and is not protected. For example, if a provider in a partial apology law state admits “operating on the wrong knee,” and she is “sorry” about it, the only admissible portion of the statement would be the part about operating on the wrong knee, since that is a medical fact, Hendren explains. The expression of sorrow would not be admissible because it is not a medical fact and cannot be admitted into evidence to prove fault.
Partial apology laws might leave clinicians with semantic challenges that can make them sound insincere, or even suspicious, as they attempt to guide their comments along the narrow path of protected words.
“There are those who argue that jurisdictions with no apology laws are best because the lack of such laws removes the issue of admissibility from consideration and encourages language that is more explanatory rather than fault or sympathy-based,” Hendren says.
Regardless of which state laws apply, Harris says risk managers should encourage providers to communicate with patients and their families with empathy and honesty during all stages of care and treatment. Building trust before an adverse event or outcome occurs will be important in how subsequent discussions are received.
Patients and their families often are more concerned about knowing what happened, how they will take care of the patient going forward, and how similar situations will be addressed or prevented in the future, rather than knowing who is to blame for what happened.
“Unfortunately, apologies are rare in our society, and that sometimes makes them sound suspicious — even when they are sincere and well-intended. Awareness of this cultural fact and how it affects open and honest communications with patients and their families is imperative in professional healthcare relationships,” Hendren says. “Difficult conversations are necessary from time to time, but providers need to recognize that it is not just how you say things, but what you say.”
- Ross NE, Newman WJ. The role of apology laws in medical malpractice. J Am Acad Psychiatry Law 2021;49:406-414.
- McMichael BJ, Van Horn RL, Viscusi WK. “Sorry” is never enough: How state apology laws fail to reduce medical malpractice liability risk. Stanford Law Rev 2019;71:341-409.
- Roger Harris, JD, Partner, Swift Currie, Atlanta. Phone: (404) 888-6175. Email: [email protected].
- Jason B. Hendren, JD, Partner, Hall Booth Smith, Rogers, AR. Phone: (479) 391-6202. Email: [email protected].
- Benjamin J. McMichael, JD, Associate Professor of Law, The University of Alabama School of Law, Tuscaloosa. Email: [email protected].
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